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8/7/2019 ACLU lawsuit on SB165, HB477
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Chad R. Derum (9452)
MANNING CURTIS BRADSHAW
& BEDNAR
170 South Main Street
Salt Lake City, UT 84101Telephone: 801.363.5678
Darcy M. Goddard, Legal Director (13426)
AMERICAN CIVIL LIBERTIES UNION
OF UTAH FOUNDATION, INC.
355 North 300 West
Salt Lake City, Utah 84103Telephone: 801.521.9862
David C. Reymann (8495)
PARR BROWN GEE & LOVELESS
185 South State Street, Suite 800
Salt Lake City, UT 84111
Telephone: 801.532.7840
Attorneys for Petitioners
IN THE UTAH SUPREME COURT
NANCY LORD, JANALEE S. TOBIAS,
and MADISON M. HUNT,
Petitioners,
vs.
GREG BELL, in his official capacity as
Lieutenant Governor of the State of Utah;
and JOHN DOES 1-10,
Respondents.
Case No. _________________
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PETITION FOR WRIT OF
EXTRAORDINARY RELIEF
Petitioners Nancy Lord, Janalee S. Tobias, and Madison Hunt (collectively,
"Petitioners") respectfully submit this Memorandum of Points and Authorities in Support
of their Petition for Writ of Extraordinary Relief.
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INTRODUCTION
Petitioners' request for an extraordinary writ comes from extraordinary
circumstances. On March 10, 2011, Utah Governor Gary Herbert signed into law House
Bill 477 ("HB 477"). HB 477 amends Utah's Government Records Access Management
Act ("GRAMA")the law that secures the public's right to obtain government records
that show how the public's business is being done. Among its many now-notorious
provisions, HB 477 shields from public disclosure voice mails, instant messages, video
chats and text messageseven when those communications relate to public business. It
expands the fees the government can charge for retrieving public records. HB 477 also
eliminates the presumption that government records may be publicly disclosed and places
on the requesting party the burden to show why the records that concern public business
should be accessible.
The public's reaction to HB 477 has been swift and overwhelmingly negative.
Rarely, if ever, has this state seen citizens of nearly every political stripe and every
political label united in such an outpouring of opposition to the legislature's work.
Petitioners Lord and Tobias are sponsors of the HB 477 Referendum, and wish to
submit electronically gathered signatures in support of their effort. On March 10, 2011,
the same day he signed HB 477, the Governor also signed into law Senate Bill 165 ("SB
165"), which struck at the heart of Utah voters' fundamental constitutional right to
legislate directly through initiatives and referenda. In SB 165, the legislature decided that
only handwritten (or "holographic") signatures, and not electronically collected
signatures, could be counted toward the total signatures required to put an initiative or
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referendum on the ballot. As a result of SB 165, Respondent Lt. Gov. Bell has stated his
refusal to count any electronically collected signatures supporting the HB 477
Referendum.
The effect of SB 165 is to exclude thousands of Utah voters from exercising their
constitutional right to sign petitions supporting initiatives and referenda. Not only does
SB 165 impose a facially unconstitutional burden on Utah voters' fundamental right to
exercise the right to initiative and referendum, it also violates the uniform operation of
laws provision in the Utah Constitution, which requires laws that implicate fundamental
rights to treat similarly situated people equally. In mandating that only handwritten
signatures will be accepted, the legislature has effectively ruled that thousands of
registered Utah voters not present in the state during the signature gathering periodsuch
as Petitioner Madison Hunt (a University of Pennsylvania student), our military
servicemen and women, missionaries, and othershave no right to exercise their
constitutional right to support initiatives and referenda. This disenfranchisement of
thousands of Utah voters is unfair, unnecessary, and unconstitutional.
In singling out and prohibiting all electronically gathered signatures, SB 165 is
nothing more than a purported solution in search of a problem. As this Court made clear
less than a year ago in Anderson v. Bell, no valid reason exists to distinguish between
electronic signatures and handwritten signatures so long as the intent of the signer is
manifest. While SB 165's sponsors hypothesized about the "integrity" of electronic
signatures, this Court recognized in Anderson that signatures gathered electronically can
be verified, if anything, more easily than holographic signatures, and have the potential to
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deter fraud. All of that could be done at no cost to the state. Accordingly, Respondent's
refusal to count any electronically collected signatures violates Utah voters' constitutional
rights to use the initiative and referendum power, which is expressly reserved for the
people in Article VI, Section 1 of the Utah Constitution.
The unjustified, unconstitutional burden created by SB 165 is even more onerous
when the blanket ban on electronically collected signatures is considered along with the
other unnecessary and undue burdens included in the law. For example, although SB 165
did not expand the forty-day time period petition sponsors have to collect signatures, the
legislature nevertheless increased the total number of signatures required by at least one-
third. In addition, the legislature added a blatantly unconstitutional requirement that
county clerks individually verify each petition signature against a signature in the state's
voter registration database to make sure the two are "substantially similar." The law does
not explain how county clerks are to accomplish the Herculean task of verifying these
signatures in the limited time frames the laws allow.
In HB 477, the legislature has attempted to secure its ability to do legislative work
beyond the public's view using twenty-first century technologies like video chats and text
messaging. In SB 165, however, the legislature condemned Utah voters to using ancient
technology when attempting to exercise their constitutional right to check the legislature's
power through initiatives and referenda. This Court's decisions make clear that the
public's right to exercise the power of initiative and referendum deserves the utmost
protection, and that principle must be applied here. Ultimately, SB 165's only purpose is
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to make it more difficult for citizens to gather the signatures necessary to support
initiatives and referenda, including the HB 477 Referendum.
ARGUMENT
I. THE PEOPLE'S RIGHT TO REFERENDA AND INITIATIVE IS
SACROSANT UNDER THE UTAH CONSTITUTION.
The Utah Constitution vests in "the people of the State of Utah" the power both to
initiate "any desired legislation" and to hold a referendum on "any law passed by the
Legislature" before that law may take effect. Utah Const. art. VI, 1. The people's right
to "directly legislate through initiative and referenda is sacrosanct and a fundamental
right." Gallivan v. Walker, 2002 UT 89, 27, 54 P.3d 1069. Accordingly, "Utah courts
must defend it against encroachment and maintain it inviolate." Id. This Court has
described the right to initiative and referenda as "sacred right to be carefully preserved"
and protected "against any encroachment." Id. (citing In re Referendum Pet. No. 18,
State Question No. 437, 417 P.2d 295, 297 (Okla. 1966); Bernstein Bros., Inc. v. Dep't of
Revenue, 661 P.2d 537, 539 (Or. 1983)). Because this "fundamental right" is found "at
the very core of our republican form of government," any law that limits the right to
initiative and referenda is "'viewed with the closest scrutiny.'" Id. (quoting Urevich v.
Woodard, 667 P.2d 760, 762 (Colo. 1983)). The rights to initiative and referenda
embody the maxim that "[t]he government of the State of Utah was founded pursuant to
the people's organic authority to govern themselves." Id. 22. Thus, although
"lawmaker" and "legislator" have become colloquial synonyms, it cannot be forgotten
that the "power of the legislature and the power of the people to legislate through
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initiative and referenda are coequal, coextensive, and concurrent and share 'equal
dignity.'" Id. 23. (quoting Utah Power & Light Co. v. Provo City, 74 P.2d 1191, 1205
(1937) (Larson, J., concurring)).
Petitioners' challenge to SB 165 is rooted in this Court's decision in Gallivan,
which reaffirmed that limitations on the people's "fundamental right" right to initiative
and referenda are constitutionally suspect. Gallivan, 2002 UT 89, 52. In Gallivan, the
Court granted a petition for extraordinary writ and struck down the multi-county ballot
initiative petition signature requirement in Utah's then-existing initiative statute. Id. 95.
The Court held that the restriction diluted the signatures of urban voters in favor of voters
from less-populous rural counties. Id. 49. This requirement came at the expense, the
Court held, of the people's constitutional right to "exercise their direct legislative power
through initiatives and referenda." Id. 23. In particular, the Court held that the
rural/urban voter distinction that the multi-County signature requirement created violated
the uniform operation of laws provision of the Utah Constitution. See Utah Const. Art. I,
24. As shown in this Petition, SB 165 must be struck down as unconstitutional for the
same reasons that supported the Court's decision in Gallivan.1
1The multi-county requirement that the Court struck down in the initiative statute in
Gallivan still exists in the referendum statute. See Utah Code Ann. 20A-7-301(1)(a)(ii)
(requiring a referendum sponsor to gather "from each of at least 15 counties, legal
signatures equal to 10% of the total of all votes cast in that county for all candidates for
governor at the last regular general election at which a governor was elected"). That
portion of the referendum statute is, thus, also unconstitutional.
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II. LT. GOV. BELL'S REFUSAL TO COUNT SIGNATURES GATHERED
ELECTRONICALLY VIOLATES THE UNIFORM OPERATION OF
LAWS PROVISION IN THE UTAH CONSTITUTION.
SB 165 excludes thousands of Utah voters from participating in the initiative and
referendum process by imposing a requirement that only handwritten signatures will be
counted. The legislature has not merely "burdened" the constitutional rights of Utah
voters, but has excluded voters from exercising those rules at all by refusing to recognize
their valid electronic signatures. This disparate impact on Utah voters cannot be
tolerated.
The Utah Constitution states that "[a]ll laws of a general nature shall have uniform
operation." Utah Const. art. I, 24. This constitutional requirement is "at least as
exacting and, in some circumstances, more rigorous than the [equal protection] standard
applied under the federal constitution." Gallivan, 2002 UT 89, 33. However, the
general principal embodied in both constitutional provisions is the same: "'persons
similarly situated should be treated similarly, and persons in different circumstances
should not be treated as if their circumstances were the same. '" Id. 31 (quoting Malan
v. Lewis, 693 P.2d 661, 669 (Utah 1984)). It is not sufficient for the text of SB 165
merely to appear "uniform" to satisfy the constitutional standard. Rather, it is the
"operation" of the law that impacts the "equal protection principle inherent in the uniform
operation of laws provisions." Id. 37-39 (quotations omitted). Laws that "'single out
one person or group of persons from among the larger class on the basis of a tenuous
justification that has little or no merit'" are unconstitutional. Id. 38 (quoting Malan, 693
P.2d at 671)). As shown below, the classifications SB 165 creates do not operate
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uniformly "on all persons similarly situated within constitutional parameters." Gallivan,
2002 UT 89, 38 (quotation omitted).
A. SB 165 Impacts the People's Fundamental Rights and Is Subject toHeightened Scrutiny.
Where a challenged statute implicates a "fundamental or critical right," or creates
classifications that are "considered impermissible or suspect in the abstract," the Court
applies a "heightened degree of scrutiny" in its operation of laws analysis. Id. 40.
SB 165 presents an even stronger case than Gallivan in demonstrating a violation
of the uniform operation of laws provision. Here, SB 165 implicates the people's
"fundamental right" to initiative and referenda because it precludes petition sponsors
from gathering signatures electronically, notwithstanding this Court's recognition that
such signatures are equal in every material respect to handwritten signatures. See
Anderson, 2010 UT 47, 17 (noting "we cannot see how the manner the signor elects to
place his name" on a nominating petition "has any impact on the signor's intent to support
the petitioner's candidacy"). Of particular significance, the Court noted in Anderson that
"the importance of the intent of the signor, as opposed to the form of the signature" had
long been recognized in the common law of this state, 2010 UT 47, 16, 234 P.3d at
1152, and that, "'[w]hile one's signature is usually made by writing his name, the same
purpose can be accomplished by placing any writing, indicia or symbol which the signor
chooses to adopt and use as his signature and by which it may be proved: e.g., by finger
or thumb prints, by a cross or other mark, or by any type of mechanically reproduced or
stamped facsimile of his signature, as effectively as by his own handwriting,'" 2010 UT
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47, 16, 234 P.3d at 1152 (emphasis in original) (citations omitted). Unlike Gallivan,
SB 165 does not merely give greater weight to some voters over others. Rather, it
categorically excludes some voters from participating in the process at all based on an
artificial distinction about what kind of signature they use. Accordingly, the Court must
apply "heightened scrutiny" to its analysis of SB 165. Gallivan, 2002 UT 89, 41-42.
B. SB 165 Creates Discriminatory Classifications that Treat SimilarlySituated Voters Differently.
Laws that discriminate against citizens' fundamental rights are subject to rigorous
analysis under Gallivan. Id. 42 (quoting three-part test set forth in Lee v. Gaufin, 867
P.2d 572, 582-83 (Utah 1993)). The Court must first determine: "(1) what, if any,
classification is created and (2) whether that classification is discriminatory, that is
whether it treats members of the class or subclasses disparately." Id. 43. In Gallivan,
the Court held that the multi-county signature requirement created "two subclasses of
registered voters," i.e., those who reside in rural counties and those who reside in urban
counties. Id. 44. Because the multi-county signature requirement gave greater power
to rural voters, the Court held that the petitioners satisfied the threshold test of the
uniform operation of laws analysis. Id. 44-45.
As in Gallivan, SB 165 creates "two subclasses of registered voters," thus
satisfying the first element of the threshold test. SB 165 distinguishes between registered
voters who are able to sign a petition holographically and registered voters, like Petitioner
Hunt, who are not able to sign a petition holographically but are capable of signing a
petition electronically. This distinction is evident on the face of SB 165, which expressly
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states that "an electronic signature may not be used to sign a petition" for ballot access
purposes.2See SOF 10.
The second element of the threshold test is also satisfied because these
discriminatory classifications have a disparate impact on Utah voters. In Gallivan,the
Court struck down the multi-county signature requirement because it raised rural voters
to the "level of gatekeepers who can effectively keep initiatives off the ballot despite the
existence of significant numeric support for the initiative in urban portions of the state."
Id. 45. Similarly, SB 165 limits the number of voters able to support a petition to those
able to execute a handwritten signature, while excluding other citizens from participating
in a petition drive altogether because they are unable to do so. This classification
baselessly places the form of the signature over the signer's intent to exercise his or her
fundamental right to sign the petition. See Anderson, 2010 UT 47, 16 (recognizing that
"'it is the intent [to sign] rather than the form of the act that is important'" (quoting Salt
Lake City v. Hanson, 425 P.2d 773, 774 (1967))).
The discriminatory classifications SB 165 creates excludes thousands of Utah
voters from exercising their constitutional right to sign referendum and initiative
petitions. For example, government records show that approximately 1,000 high school
graduates left Utah in 2006 to study in higher learning institutions outside Utah. See
National Center for Education Statistics Participation in Education Table.3 See Add. F.
2 Like Gallivan, these subclasses emerge not from the language of the statute but from its
effect. Gallivan, 2002 UT 89, 44.3Available athttp://nces.ed.gov/programs/coe/2008/section1/table.asp?tableID=871(last
visited Mar. 22, 2011).
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Although we do not know how many of those students remain registered Utah voters,
those who are registered Utah voters are effectively disenfranchised from participating in
petition drives that require a holographic signature. SB 165 also disenfranchises other
classes of citizens, such as soldiers or missionaries4
living overseas, who cannot satisfy
SB 165's holographic signature requirement. According to Mark Thomas, Director of
Elections for the State of Utah, in 2010 Utah sent out 1,452 ballots to "civilian overseas
voters" and "1,487 ballots to military voters" both in the United States and abroad. (See
Add. E, Thomas E-Mail). The interests of these military personnel are particularly
significant because "[h]ow and where they conduct their lives is dictated by the
government." Bush v. Hillsborough Cnty. Canvassing Bd., 123 F.Supp.2d 1305, 1307
(N.D. Fla. 2000). In Bush, the court acknowledged the right of military personnel to
receive an absentee ballot because, "[f]or our citizens overseas, voting by absentee ballot
may be the only practical means to exercise" the right to vote. Id. For service members,
"[t]he vote is their last vestige of expression and should be provided no matter what their
location." Id. SB 165 shuts off these citizens' right to participate in the equally
fundamental right to sign a petition. Indeed, although SB 165 creates a statutory avenue
for voters to obtain an absentee ballot electronically, Utah Code Ann. 20A-2-206(1),
the same law also bans voters from signing a petition electronically.
4 According to statistics cited in an opinion in Utah v. Evans, which involved the State of
Utah's claim that overseas LDS missionaries should be included in Utah's census count,
there were approximately 11,000 missionaries serving overseas as of April 1, 2000. Utah
v. Evans, 143 F. Supp. 2d 1290, 1293 (D. Utah 2001). That figure does not include any
missionaries who are not overseas but reside out of state and whom SB 165 would also
impact.
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SB 165 completely prevents these Utah voters' participation in the initiative and
referendum signature-gathering process and violates their constitutional right to be
treated the same as other Utah voters. Under Utah's election code, it is the county clerk's
duty in verifying petition signatures to determine whether each signatory is a Utah
resident, at least 18 years old, and a registered voter. See Utah Code Ann. 20A-7-305
(verification procedure for referenda). These are the only valid criteria required for a
signature to be certified, and those criteria can be applied equally to all signers, regardless
of whether a voter signed the petition electronically or holographically. SB 165,
however, creates an additional undue burden, requiring the signer to execute the petition
in a specific manner before their signature is counted.
Such an obvious disenfranchisement of even some Utah voters in the petition-
gathering process cannot be swept aside, particularly where the Court's heightened
scrutiny standard applies. After all:
The voters' right to initiative does not commence at the ballot box: The
voters' right to legislate via initiative includes signing a petition to get the
proposed initiative on the ballot. Signing a petition is inextricably
connected to the voters' right to vote on an initiative because it serves a
gatekeeping function to the right to vote. Accordingly, "[t]he use of . . .
petitions . . . to obtain a place on the [state's] ballot is an integral part of
[its] elective system."
Gallivan, 2002 UT 89, 26 (quoting Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (first
and second alterations in original)). SB 165's exclusion of signatures gathered
electronically deprives Utah voters the right to "associate for the advancement of political
beliefs" and, for petition signers, to "cast their votes effectively." Id. (quotation omitted).
Applying the appropriate level of scrutiny, it is apparent that SB 165 does "not apply
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equally to the subclasses" of Utah voters and "in effect creates a discriminatory
classification because of its disparate impact." Id. 45.5
C. SB 165's Discriminatory Classifications Are Impermissible Under theUtah Constitution's Uniform Operation of Laws Provision.
Having determined that SB 165 results in discriminatory classifications among
Utah voters, the question becomes whether those classifications are constitutionally
permissible. To answer that question, the Court applies the rigorous three-part analysis
described in Gallivan, which requires consideration of "each stated legislative purpose"
supporting SB 165 to determine whether (i) the stated legislative purpose is legitimate;
(ii) whether it "substantially furthers that purpose," and (iii) whether the stated purpose
is "reasonably necessary to further the legislative purpose." Gallivan, 2002 UT 89,
42, 43. None of the purported justifications for SB 165 survive that analysis.
1. SB 165 Is Not Necessary To Protect the Integrity of the SignatureGathering Process.
Despite SB 165's vast impact on the constitutional rights of Utah voters, the
legislative history supporting SB 165 is extraordinarily brief, with recordings of
committee and floor discussions in both the Senate and the House totaling less than thirty
5Respondents may contend that SB 165 does not create any greater disparate impact
among Utah voters than existing law, which requires petition circulators to verify that
petition signers signed the petition in the "presence" of the petition circulator. See, e.g.,
Utah Code Ann. 20A-7-303(3) (stating petition form requirements for referenda). TheUtah Code does not define "presence" in this statute. Nevertheless, in light of the
fundamental rights at issue, the Court cannot construe the term "presence" strictly to
mean "physical presence" because that narrow construction appears nowhere in the
statute and it would necessarily disenfranchise voters of their constitutional rights to
participate in petition drives. Whenever possible, it is this Court's policy to construe a
statute to "avoid potential constitutional conflicts." Cole v. Jordan Sch. Dist., 899 P.2d
776, 778 (Utah 1995).
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minutes, only a sliver of which was substantive. See Statement of Facts in Petition for
Writ of Extraordinary Relief ("SOF ") at 10-22. During this brief discussion, the
legislative purpose first advanced to support SB 165 was that a blanket ban on
electronically gathered signatures was necessary to preserve the integrity of the signature-
gathering process for ballot access measures. SOF 13. For example, Senator Curt
Bramble, Senate sponsor of SB 165, argued: "[C]urrently it is very difficult to have the
kind of integrity in the process for electronic signatures." Id. see also SOF 11 (stating
concern about "whether or not electronic signatures are allowed without, uh, any
verification or checks and balances as to the security of those signatures").
Concern about the "integrity" of electronic signatures could be a legitimate
legislative purpose only if it sought actually to protect, rather than burden, the people's
free exercise of their constitutional rights. On that point this Court has been clear:
The initiative power and the citizens' right to legislate directly through the
exercise of that power is a fundamental right guaranteed in the UtahConstitution. The legislature's purpose to unduly burden or constrict that
fundamental right by making it harder to place initiatives on the ballot is
not a legitimate legislative purpose.
Gallivan, 2002 UT 89, 52 (citation omitted). Accordingly, since no matter the stated
purpose, the effect of implementing that purpose is to restrict the exercise of
constitutional rights, or in this case absolutely deny them to thousands of voters, then it is
illegitimate.
Notwithstanding its ostensible purpose, SB 165 does nothing to protect the
integrity of signature gathering. Although SB 165's Senate sponsor's publicly stated
concern was the "security" of electronically collected signatures, the legislature made no
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specific findingsnor could theyabout any security flaws in any (let alone all) of the
various methods for collecting and verifying signatures on-line. SOF 11 . Indeed, the
legislature engaged in no meaningful inquiry into how, when, where, or why
electronically gathered signatures are less reliable than holographic signatures.6
For
example, although styled as "fact," the House sponsor's comments reveal the paucity of
actual evidence impugning the integrity of electronic signature gathering:
The fact is, if we have an electronic signature system, it is very, very easy
to hack into it and put in false signatures, and it's extremely difficult and
very expensive for our election officials to do that. If we are going to allow
for electronic signatures, and I'm not necessarily opposed to that, we haveto face up to the fact that the cost is going to be millions and millions of
dollars. That's just all there is to it.
SOF 21. Critically, the House sponsor offered no evidence that "hack[ing]" into
electronic signature systems has ever been a problem in Utah or why "millions of
millions of dollars" would be required to address such a non-issue. Armed only with only
vague and unsupported attacks, Respondents cannot show that the law "substantially
furthers" the any legitimate legislative purpose, including the one expressed by SB 165's
sponsors.
The Court cannot reasonably conclude that a blanket ban on all signatures collected
electronically would "substantially further" the legislative purpose of protecting the
"integrity" of the signature-gathering process without first accepting the premise that
6The legislature also added new provisions to the Election Code in SB 165 that purport
to require county clerks to determine whether each holographic petition signature
"appears substantially similar to the signature on the statewide voter registration
database." SOF 16. This provision is independently unconstitutional for the reasons set
forth in Part V, below.
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such signatures necessarily, no matter the verification procedures in place, threaten the
integrity of that process. No such evidence exists here to justify departure from
Anderson's recognition of the validity of electronic signatures.
Given the constitutional implications of banning all electronically collected
signatures in support of referenda or initiatives, the burden to show that SB 165 is
"reasonably necessary" is a heavy one. Gallivan, 2002 UT 73, 47. The fundamental
question is whether SB 165 is needed to correct some problem with electronic signature
verification in the status quo. The answer is no. This Court has already considered and
rejected that argument in Anderson:
The Lt. Governor . . . contends that electronic signatures attached to a
certificate of nomination lack "apparent authority" as genuine signatures.
This position is based on a theory that a holographic signature is self-
authenticating because the reviewing party may merely look at the
signature and see that someone put pen to paper to sign their name. In
contrast, an electronic signature lacks apparent authority, because it appears
as a typed list of names. The Lt. Governor's argument here, however, is
really about fraud and the ability to detect fraud. We are unpersuaded thatan electronic signature presents special concerns regarding candidate fraud;
a candidate could as easily handwrite or type fraudulent names onto a
certificate of nomination.
Anderson, 2010 UT 47, 23, n.7.7
(emphasis added).
7Indeed, this Court concluded that electronic signatures could "be a better deterrent tocandidate fraud" (emphasis added) because electronic signature gathering systems can
easily "incorporate[] readily verifiable personal, but not-public, information." Anderson,
2010 UT 47, 23, n.7. Petitioners Lord and Tobias are prepared to collect electronic
signatures in support of the HB 477 Referendum using "an existing system designed to
verify the authenticity of signatures gathered and the identity of the signers." SOF 1
(Declarations of Petitioners, Add. B at 4 ; Add. C at 4).
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Banning all electronically collected signatures is also not "reasonably necessary"
because the claimed "legislative purpose could still be furthered without infringing
constitutionally protected rights through less restrictive, burdensome, or discriminatory
means." Gallivan, 2002 UT 73, 56. Rather than forbid electronically gathered
signatures altogether, the legislature could simply have implemented verification
procedures that would ensure all registered voters are capable of signing a petition
electronically. SB 165's shotgun approach does not even leave room for discussion about
the merits of such verification procedures; instead, it categorically excludes an entire
class of signatures (and thus voters) from the petitioning process while providing no
alternative mechanism for permitting voters disenfranchised by the holographic signature
requirement to participate in petition drives.
2. Clarifying a Legislative Intent that Violates the Constitution is Not aLegitimate Legislative Purpose.
The second purported legislative purpose for SB 165 is that the measure was
necessary to provide "direction to the courts" and "clarify the intent of the legislature" in
the wake ofAnderson. SOF 14. Although "clarify[ing] the intent of the legislature"
may be a perfectly legitimate justification for some legislation, that purpose is not
legitimate if the underlying effect of the bill is to discriminate against some Utah voters
and deprive them of their constitutional rights of initiative and referenda. See, e.g.,
Gallivan, 2002 UT 73, 59, n.11 ("The legislature is not free to enact restrictions on
constitutionally established and guaranteed rights and powers whenever it perceives that
the system of checks and balances is misaligned or out of equilibrium. Such a purpose is
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not a legitimate legislative purpose."). As discussed above, SB 165 denies the
referendum right to thousands of Utah voters who are unable to sign petitions
holographically. To the extent the legislature's express purpose in passing SB 165 is to
make clear its intent to forbid electronic signatures, this legislative purpose is illegitimate
on its face because it unduly burdens and forbids the exercise of fundamental
constitutional rights among otherwise similarly situated Utah voters.
Because the claimed legislative purpose to "clarify the intent of the legislature" is
not legitimate, it is irrelevant whether SB 165 "substantially furthers" or is "reasonably
necessary" to effect an unconstitutional purpose.
3. SB 165 Does Not Save Money For the State.The third purported legislative purpose for SB 165 is that it will save money for
the State of Utah. Although there is no indication in the legislative history that the
legislature ever studied the cost impact of accepting electronically gathered signatures,
the House sponsor of SB 165 asserted that any system allowing the use of electronic
signatures would be cost "prohibitive," SOF 19, and that, "[i]f we are going to allow
for electronic signatures, . . . the cost is going to be millions and millions of dollars," SOF
21. This contention apparently rests on the unsupported (and insupportable) notion that
the only way in which the State could ever allow electronically collected signatures for
ballot access would be if the State were to design its own on-line signature collection
system, on its own time and at its own expense. That is simply not the case.8
The
8 Even if the State did want to design its own system to collect electronic signatures, no
reason exists to hold hostage the constitutional rights of Utah voters until the legislature
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legislative history contains nothing to support the idea that the sponsors of any initiative
or referenda have ever sought to have the State of Utah shoulder the burden of paying for
electronic signature gathering. Indeed, Petitioners have made clear they will pay for such
a system themselves. SOF 1 (Declarations of Petitioners, Add. B at 4 ; Add. C at 4).
SB 165 does not avoid any expenditures, much less the expenditure of "millions
and millions of dollars." SOF 21. By any standard, SB 165 is not "reasonably
necessary" to advance the state's interest in saving money.
III. THIS COURT SHOULD NOT APPLY THE LOWER STANDARD OF
SCRUTINY FROM THE UTAH SAFE TO LEARNCASE.
Even if this Court declines to find that SB 165 violates the uniform operation of
laws provision in article VI, section 1 of the Utah Constitution, this Court should still
apply heightened scrutiny to the restrictions on referendum signatures enacted by SB 165
and reject the lower standard of scrutiny set forth in Utah Safe to Learn-Safe to Worship
Coalition v. State of Utah, 2004 UT 32, 94 P.3d 217. This is true for two reasons. First,
the new distinction created in Utah Safe to Learn between restrictions on the initiative
right that warrant heightened scrutiny, and those that do not, is circular and inadequately
protective of the people's fundamental referenda rights. This Court should return to the
bright-line standard employed in Gallivan and apply heightened scrutiny in this case.
Second, even if the Court maintains the Utah Safe to Learn distinction for initiatives, it
sets aside "millions and millions of dollars" for that effort. In any event, the Lt. Gov.'s
own report prepared in connection with the interim rules on electronic signatures for
initiative and referendademonstrates that there is no cost impact in collecting electronic
signatures. See Rule R623-4, Electronic Signatures in Initiatives and Referenda, Notice
of 120-Day (Emergency) Rule, DAR File No. 33815.
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should decline to extend that rule to referenda because, unlike initiatives, referenda are
designed as a specific check on legislative power. The legislature's self-interested
curtailment of the people's referendum rights is thus inherently suspect and should be
subject to exacting scrutiny.
A. This Court Should Depart From the Distinction Created by Utah Safe
to Learn.
As noted above, in Gallivan this Court was clear that restrictions on the initiative
right contained in enabling legislation implicate fundamental rights, and therefore trigger
heightened scrutiny. Gallivan, 2002 UT 89, 27, 40. In Utah Safe to Learn, this Court
departed from this bright-line rule, holding that certain restrictions on the initiative right
are merely part of the legislature's enabling duties and are inherent in the "self-limiting"
nature of the initiative right, implying that such restrictions do not implicate fundamental
rights. 2004 UT 32, 28-29, 34 (upholding initiative provisions relating to senate
districts, one-year deadline, and signature removal procedures). This Court held that
such restrictions "need not be subjected to heightened scrutiny review." Id. 29. In
explaining why the heightened scrutiny ofGallivan did not apply, the Utah Safe to Learn
court held that Gallivan involved a restriction that implicated "two constitutional
values"the constitutional right to initiatives, and the uniform operation of laws
provision. Id. 33. When a restriction implicates only the initiative right itself, the
Court held that lesser scrutiny is appropriate.9 Id. 34.
9This distinction is unsupported by the language in Gallivan. Nowhere in that opinion
did this Court premise its application of heightened scrutiny on the violation of "two
constitutional values," rather than simply one. Indeed, the disjunctive language in the
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Even if this Court were inclined to extend the Utah Safe to Learn initiative rule to
the referendum contextwhich it should not doPetitioners respectfully submit that the
distinction created in that case is circular and should be reconsidered. This Court should
return to the bright-line rule followed by Gallivan and apply heightened scrutiny to this
case.
The Utah Safe to Learn opinion does not explain when a legislative restriction on
the initiative right crosses the line from mere exercise of enabling powers to
unconstitutional restriction on a fundamental right. The fact that the right is "self-
limiting" does not answer this question, because it is obvious the legislature's enabling
authority does not include the plenary power to restrict the right completely, or even
unduly. IfUtah Safe to Learn therefore stands for the proposition that some legislative
restrictions are so innocuous that they warrant lower scrutiny, but more severe
restrictions can implicate fundamental rights and trigger higher scrutiny, then the
distinction created by that case is circular because the only measure for when lower
scrutiny applies is that the restriction does not unduly curtail the initiative rightthe very
question that scrutiny is applied to answer.
opinion suggests the opposite. See Gallivan, 2002 UT 89, 40 ("Where a legislativeenactment implicates a 'fundamental or critical right' or creates classifications which are
'considered impermissible or suspect in the abstract,' we apply a heightened degree of
scrutiny" (citations omitted; emphasis added)); id. 41 ("The starting point of our
analysis, therefore, is whether the multi-county signature requirement of the initiative
enabling statute implicates a 'fundamental or critical right' or creates classifications which
are 'considered impermissible or suspect in the abstract.'" (citations omitted; emphasis
added)).
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If, on the other hand, Utah Safe to Learn stands for the proposition that restrictions
on the initiative right, no matter how severe, trigger heightened scrutiny only if they also
violate another fundamental right, then the distinction trivializes the initiative right and
gives nearly unfettered power to the legislature. Applying heightened scrutiny only
where two constitutional violations exist significantly undermines the commitment in
Gallivan that "the people's right to directly legislate through initiative and referenda is
sacrosanct and a fundamental right." Gallivan, 2002 UT 89, 27.
The bright-line rule followed by Gallivan solves this dilemma. Although it is true
that the rights to initiatives and referenda are self-limiting, that does not mean that the
legislature's enabling statutes do not implicate those rights. Any time the legislature
imposes restrictions on the initiative and referenda processesand particularly when they
enact self-interested restrictions affecting the people's right to referendathose
restrictions should be subject to heightened scrutiny. If some restrictions regarding time,
place, and manner of the people's exercise are so innocuous that they clearly fall within
the self-limiting nature of the right, then they will easily pass scrutiny. Other restrictions
that are more severe may not. But that does not mean in either case that the Court's
evaluation of those restrictions on fundamental rights should be any less searching.
B. This Court Should Adopt a Heightened Standard of Review for
Restrictions on Referendum Rights.
Even if this Court chooses not to depart from the lower scrutiny rule in Utah Safe
to Learn, it should decline to extend that rule to the referendum context based on
fundamental differences between initiatives and referenda.
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While the people's fundamental rights to create legislation through initiative and to
reject legislation through referendum are both set forth in the same section of the Utah
Constitution, those rights are different in nature. As this Court has explained, an
"initiative petition offers an avenue for voters to create statutory law without the
participation of the legislature. On the other hand, a referendum petition is for the sole
purpose of giving voters the opportunity to accept or reject a specific legislative
enactment." Snow, 2007 UT 63, 17. Thus, while the initiative process allows the
people to exercise their co-equal power to create legislation, the referendum process
exists solely as a check on the exercise of legislative power, serving as an enduring
reminder that "all political power is inherent in the people." Gallivan, 2002 UT 89, 22
(quoting Utah Const. art. I, 2).
This distinction is constitutionally important. Even critics of initiatives concede
that referenda are substantially unique, recognizing that the right to check specific
legislative enactments is fundamentally different from the right to exercise concurrent
legislative power. See Hans A. Linde, Who Is Responsible for Republican Government?,
65 U. Colo. L. Rev. 709, 724 (1994). Put differently, with a referendum the people are
not exercising a power also given to the legislature, but instead are exercising a different
and fundamental right to check their legislative representatives' use of their own
legislative power.
For this reason, courts have consistently recognized the important role of referenda
in constraining the power of legislatures. See, e.g., Midway Orchards v. Cnty. of Butte,
220 Cal. App. 3d 765, 776-79 (1990) ("[T]he power of referendum guarantees to the
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citizens an ultimate check on legislative power."); Michigan Farm Bureau v. Sec'y of
State, 151 N.W.2d 797, 800 (Mich. 1967) (noting that, the "referral process, forming as it
does a specific power the people themselves have expressly reserved, [must] be saved if
possible as against conceivable if not likely evasion or parry by the legislature"); Luker v.
Curtis, 136 P.2d 978, 981 (Idaho 1943) ("[T]he referendum was designed as a check
upon all legislative enactments not favored by the people.").
Although the Utah Constitution allows the legislature to enact enabling legislation
setting forth certain conditions and requirements for exercise of the referendum right, see
Utah Const. art. VI, 1(2), that power is not plenary.10
When the legislature imposes
restrictions on the referendum right, it is essentially engaging in a type of self-dealing
i.e., diminishing the power of the people to check the legislature itself, and by necessity
expanding the legislature's own unchecked powers. This separation of powers concern is
unique to referenda and was not at issue in either Gallivan or Utah Safe to Learn.
In similar contexts where a governmental actor has a stake in a particular
transaction, courts have applied heightened judicial scrutiny to ensure that the actual
motivations of the government serve the public good. See, e.g.,Clingman v. Beaver, 544
10For example, the legislature could not rely on its enabling authority to require that a
petition receive unanimous voter support, afford only two days to gather signatures,
require that it be raining when signatures are gathered, or count only signatures gathered
in Salt Lake City. See Utah Safe to Learn, 2004 UT 32, 34 (even under lesser scrutiny,an enactment cannot "unduly burden or diminish the initiative right"); see also Sevier
Power Co. , LLC v. Bd. of Sevier Cnty. Comm'rs, 2008 UT 72, 10, 196 P.3d 583 ("It
does not follow, logically or constitutionally, that the authority to set limits on conditions,
manner, or time gives the legislature the broader authority to deny the initiative right to
the people. . . . To do so would require us to conclude that the constitutional reservation
of the initiative power by the people was intended to be, and in fact is, illusory.").
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U.S. 581, 604 (2005) (O'Connor, J., concurring) (recognizing that partisan self dealing in
the electoral process warrants heightened judicial scrutiny).11
This Court should be especially suspect of any legislative efforts to diminish the
people's fundamental right to counterbalance the legislature through the power of
referenda. Even if a particular enactment does not implicate Utah's uniform operation of
laws provision, the self-interested nature of the legislature's restrictions, and the
fundamental nature of the referendum right, warrant the heightened scrutiny applied in
Gallivan. Because SB 165 fails under heightened scrutinyfor the reasons discussed
above, it should be declared unconstitutional.
IV. SB 165 IS UNCONSTITUTIONAL EVEN IF THE COURT APPLIES UTAH
SAFE TO LEARN.
Although the Court should reject application of the lower standard of scrutiny in
Utah Safe to Learn, SB 165 is unconstitutional even if the Court applies that standard
here. In Utah Safe to Learn, the Court held that challenges to restrictions on the initiative
right that are based solely on article VI, section 1 of the Utah Constitution must prove
that the restriction "unduly burdens the right to initiative." Utah Safe to Learn, 2004 UT
32, 35. To make this determination the Court assesses whether the challenged law has a
11 See alsoUnited States Trust Co. v. New Jersey, 431 U.S. 1, 25-26 (1977) (explaining
that when a State enacts a law that modifies the State's own contractual obligations,"complete deference to a legislative assessment of reasonableness and necessity is not
appropriate because the State's self-interest is at stake"); Condell v. Bress, 983 F.2d 415,
418 (2d Cir. 1993) ("Courts are less deferential to a state's judgment of reasonableness
and necessity when a state's legislation is self-serving and impairs the obligations of its
own contracts."); cf. also B.A.M. Dev., L.L.C. v. Salt Lake County, 2005 UT 89, 27,
42, 128 P.3d 1161 (amended and reissued as 2006 UT 2, 46, 128 P.3d 1161) (affirming
application of "heightened-scrutiny rough proportionality test" to governmental takings).
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"legitimate legislative purpose" and whether the law "reasonably tends to further that
legislative purpose." Id. The reasonableness of the law and its relation to the legislative
purpose are considered in light of "the extent to which the right of initiative is burdened
against the importance of the legislative purpose." Id. This analysis is less burdensome
than the uniform operation of laws analysis applied in Gallivan. 2002 UT 73, 42-43
(quoting Lee v. Gaufin, 867 P.2d 572, 582-83 (Utah 1993)). Petitioners assert that their
challenges to the legislative purposes supporting SB 165 survive the more rigorous
analysis applicable in Gallivan. Accordingly, it is unnecessary to repeat in detail the
challenges to SB 165's legislative purposes under the lower Utah Safe to Learn standard,
which effectively ends at the second step in the Gallivan analysis.
As shown above, none of the purported legislative purposes for SB 165 are
sufficient given the substantial burden that SB 165 places on the fundamental right for
initiative and referenda. SB 165 does not add "integrity" to signature gathering and it
does not save money. Although SB 165 does have the additional stated legislative
purpose of providing direction to the courts, that in and of itself is not a legitimate
legislative purpose. The fact that the legislature wants to ban all electronically gathered
signatures, without some legitimate policy rationale to do so, fails easily under Utah Safe
to Learn.12
Regardless of what message the legislature wants to send to the courts, an
12Utah Safe to Learn makes clear that the legislative purpose must be "reasonable and
reasonably tend to further a legitimate legislative purpose." 2004 UT 32, 43. In that
case, the legislative purpose was "ensuring a modicum of support for an initiative
throughout the statewide population," a purpose expressly acknowledged in Gallivan that
relates directly to the "procedures enacted to enable" the initiative right. Id; see also
Gallivan, 2002 UT 73, 53.
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outright, categorical merely makes it even harder to gain the signatures needed to put
initiative and referenda on the ballot. That is not a legitimate legislative purpose. See
Gallivan, 2002 UT 73, n. 11 (holding that a "legitimate" legislative purpose cannot
include "overly burdensome restrictions on the initiative power when the constitutional
responsibility and duty of the legislature in enacting initiative enabling legislation is to
facilitate the initiative process.").
At its core, the only real purpose served by SB 165 is to make it "not so easy" to
get initiatives and referenda on the ballot "simply for the sake of making it harder to do
so." Gallivan, 2002 UT 73, 53. The Gallivan Court warned of the inevitable
consequences arising from such piecemeal attacks on the right of initiative and referenda:
The legislature's purpose to unduly burden or constrict that fundamental
right by making it harder to place initiatives on the ballot is not a legitimate
legislative purpose. Endorsing this legislative purpose would essentially
allow the legislature without limitation to restrict and circumscribe the
initiative power reserved to the people, thus rendering itself the only
legislative game in town. If such a legislative purpose were legitimate, thelegislature would be free to completely emasculate the initiative right and
confiscate to itself the bulk of, if not all, legislative power. This would
obviously contravene both the letter and the spirit of article VI of the
constitution.
Gallivan, 2002 UT 73, 52. Moreover, such needless intervention in restricting how
voters can sign petitions vastly overstates the nature of the state's interest in governing
how petition sponsors go about gathering support for their initiatives and referenda. See
e.g. Bell, 2010 UT 47, 25 (the "Lt. Governor's interest here is in ensuring that the
unaffiliated candidate has sufficient support to justify including him or her on the
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statewide ballot. That interest is not diminished because the unaffiliated candidate
demonstrates the necessary support through signatures recorded electronically).
Finally, it is evident that the ban on electronically collected signatures lacks any
legitimate legislative purpose when viewed in light of additional changes to the Utah
Election Code contained in SB 165, which were also intended to make it much more
difficult to pass an initiative or referendum in Utah. First, the legislature effectively
increased the total number of votes required to get an initiative or referendum on the
ballot from 65,000 to approximately 100,000 by changing the number of votes required
to gain ballot access to 10% of the total votes cast for president of the United States,
rather than in the last general election for governor. SOF 10, n.5. Second, the
legislature substantially (and unconstitutionally) increased the chances that more
signatures will be invalidated through the unprecedented requirement that each petition
signature must validated as "substantially similar" to the signature in the state voter
registration database. Id. Third, the legislature left untouched the period of time, i.e.,
forty days after conclusion of the session, required to gather holographic signatures.
When viewed in total, in addition to forbidding referendum sponsors from using available
technology to gather signatures, SB 165 also requires them to collect more signatures, in
the same amount of time, and in the face of draconian new requirements that will
invalidate the signatures of unsuspecting voters who were never told that their voter
registration signature would be used to match future petition signatures and that it would
be thrown out if it didn't match. Under no circumstances can that reasonably be seen as a
"legitimate" legislative purpose.
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V. THE REQUIREMENT THAT A PETITION SIGNER'S SIGNATURE
MUST BE "SUBSTANTIALLY SIMILAR" TO THE VOTER DATABASE
SIGNATURE IS INDEPENDENTLY UNCONSTITUTIONAL.
The legislature, in SB 165, also sought to impose on the various county clerks
additional signature-verification requirements that, even separate and apart from the bill's
unconstitutional blanket prohibition on the collection and use of electronically collected
signatures in support of referenda and initiatives, would run afoul of this Court's decision
in Page v. McKeachnie, 2004 UT 65, 97 P.3d 1290, and are unconstitutional.
As noted above, SB 165 included language that would require county clerks, when
verifying whether each signer is a registered Utah voter, to examine each "signature" to
determine whether, in the clerk's opinion, it "appears substantially similar to the signature
on the statewide voter registration database." SOF 16. Only after that visual
comparison is completed would the county clerk be authorized to "declare the signature
valid." Id.
In the specific context of referenda, signature gatherers have forty days after the
legislative session ends in which to collect signatures and submit them to the county
clerks for verification. Utah Code Ann. 20A-7-306(1). The county clerks then have
another fifteen days in which to verify that each signer is a registered Utah voter, certify
each signature, and deliver all of the verified referendum packet to the Lieutenant
Governor's Office. Utah Code Ann. 20A-7-306(3)(a)-(c). Under the newly imposed,
heightened signature requirements included in SB 165, the county clerks statewide thus
now have fifteen days in which to complete this verification process for approximately
100,000 signatures.
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Leaving aside the near-impossibility that the various county clerks could complete
this cumbersome verification process in the limited time allowed by statute,13
any
signature verification process that relies on each county clerk (and each employee
thereof) to utilize his or her own discretion in determining whether a signature "appears
substantially similar to the signature on the statewide voter registration database" is
constitutionally problematic. As this Court recognized in Page, 2004 UT 65, 97 P.3d
1290, any signature-verification system that relies on the "wide discretion" of the various
county clerks,
creates the very real likelihood that a signature that would be certified by
one county clerk could be rejected by another, thus creating disparities in
the ability to participate in the initiative process among Utah voters
statewide. Given the constitutional status of the right of the people to
initiate legislation, Gallivan v. Walker, 2002 UT 89, 21, 54 P.3d 1069;
Utah Safe to Learn-Safe to Worship Coalition, Inc. v. Utah, 2004 UT 32,
23, 94 P.3d 217, such disparities would be problematic . . . .
Id. 5.
It is true that the Court in Page noted that, despite "recent revisions to the statutes
governing referenda and initiatives [that] have greatly clarified the standards and
13 According to the most recent census data, Utah's overall population is approximately
2.8 million, with approximately one million people (or roughly one-third of Utah's
population) residing in Salt Lake County. Assuming that signatures collected in support
of a statewide referendum would be collected in numbers roughly proportional to the
overall population of each county, the Salt Lake County clerk might be required to verify
and certify approximately 33,000 voter signatures within that 15-day window. Even ifthe county clerk were to work twenty-four (24) hours per day for all fifteen (15) days
which is itself highly unlikelyshe would have to process those 33,000 signatures in a
total of only 360 hours, at a rate of 91.7 signatures per hour (or 1.52 signatures per
minute). It is one thing to process signatures at that rate utilizing electronic means such
as electronic voter registration rolls (to establish voter status, compare addresses, or
whatever else might be reasonably required), but it is quite another if the process must
also include individual visual comparisons of each and every signature.
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procedures for" county clerks to verify signatures, "[i]t may be that further attention from
the legislature would be helpful regarding certification standards for county clerks." Id.
6. But that "further attention . . . regarding certification standards" cannot, under the
reasoning ofPage, result in a system in which each county clerk is mandated to conduct a
visual comparison of each signature submitted in support of a referendum or initiative to
determine whether, in his or her opinion, it "appears substantially similar to the signature
on the statewide registration database." SOF 16. To rely on each county clerk's
individualized, subjective determination of "substantial similar[ity]" is precisely the type
of haphazard, county-by-county practice that was found unconstitutional in Page. See
2004 UT 65, 5. (invalidating signature-verification procedures where there was no
"common policy or uniformity in the practices of the many county clerks' offices
statewide").
Our county clerks are not trained handwriting experts. They cannot reasonably be
expected to make the sort of case-by-case determinations mandated by SB 165, especially
whereas is likely to be the case with voter rollsmany (if not most) of the signatures
used for comparison will have been recorded years, even decades, earlier. And even if
the county clerks could be expected to do so, and to do so for each signature in the very
limited time available for them to complete the verification process, the uniformity of
process mandated by the Page decision would be functionally impossible. This new
requirement serves no purpose, legitimate or otherwise, except to increase the likelihood
that the same signatures that would have been accepted in prior petition drives will be
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unnecessarily excluded. Like the rest of SB 165's challenged provisions, its effect is
simply to make it harder to pass initiatives and referenda.
CONCLUSION
SB 165 violates two fundamental provisions in the Utah Constitution: Utah's
uniform operation of laws provision, art. I, 24, and Utah's referendum and initiative
provision, art. VI, 1. SB 165 creates impermissible discriminatory distinctions between
Utah voters. It permits only holographic signatures to be counted, and categorically
excludes those signatures of Utah voters who are unable to sign holographically. None of
the legislative purposes advanced in support of SB 165 justify disenfranchising Utah
voters from exercising their constitutional right to sign initiatives and referenda. For
these and other reasons, SB 165 fails no matter what standard of scrutiny the Court
applies.
Petitioners respectfully request that the Court grant this petition and declare SB
165 unconstitutional and void of all effect. Petitioners further seek an order requiring
Respondent to count all signatures gathered electronically in support of the HB 477
Referendum.
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DATED: March ____, 2011
Respectfully submitted,
__________________________________
Chad R. Derum
MANNING CURTIS BRADSHAW
& BEDNAR LLC
170 South Main Street
Salt Lake City, UT 84101
Telephone: 801.363.5678
Darcy M. GoddardAMERICAN CIVIL LIBERTIES UNION
OF UTAH FOUNDATION, INC.
355 North 300 West
Salt Lake City, Utah 84103
Telephone: 801.521.9862
David C. Reymann
PARR BROWN GEE & LOVELESS
185 South State Street, Suite 800
Salt Lake City, UT 84111Telephone: 801.532.7840
Attorneys for Petitioners
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CERTIFICATE OF SERVICE
I hereby certify that on March ____, 2011, I caused a true and correct copy of the
foregoing PETITION FOR EXTRAORDINARY WRIT OF RELIEF to be served in
the method indicated below to the following:
___HAND DELIVERY
___U.S. MAIL
___OVERNIGHT MAIL
___FAX
___E-MAIL
Thom D. Roberts
Mark L. Shurtleff
160 East 300 South, 5th Floor
P.O. Box 140857
Salt Lake City, Utah 84114-0857
Attorneys for Respondents
_________________________________________